1509886 (Migration)
[2016] AATA 4532
•24 October 2016
1509886 (Migration) [2016] AATA 4532 (24 October 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: WINMAX GROUP PTY LTD
CASE NUMBER: 1509886
DIBP REFERENCE(S): BCC2015/1125341
MEMBER:D. Dimitriadis
DATE:24 October 2016
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to approve the nomination.
Statement made on 24 October 2016 at 4:13pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 July 2015 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).
The applicant applied for approval on 15 April 2015. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.
The delegate decided not to approve the nomination on the basis that the applicant did not satisfy r.2.72(10)(f) which requires that the position associated with the nominated occupation (Marketing Specialist) is genuine.
On 5 October 2016 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information to show that the nomination meets the criteria in r.2.72.
The invitation was sent to the last email address provided in connection with the review and advised that, if the information was not provided in writing by 19 October 2016, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.
The applicant was represented in relation to the review by its registered migration agent.
For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant applied to the Department of Immigration and Border Protection (the Department) for approval of a nomination of an occupation under s.140GB of the Act. The nominee is Sijia Liu. The nominated occupation is Marketing Specialist (ANZSCO Code 225113). The applicant stated that the nominee’s base rate of pay is $65,000 and the guaranteed annual earnings are $65,000. The applicant provided a letter of support dated 3 March 2015 setting out the responsibilities of the position.
The applicant provided a number of documents to the Department including copies of advertisements, letter of offer from the applicant to the nominee dated 3 March 2015, “methodology” for determining the nominee’s annual guaranteed earnings and letter dated 15 April 2015 from the applicant about the genuineness of the position.
In the letter dated 15 April 2015, the applicant stated that they have offered the position to the nominee as the nominee possesses the necessary skills and qualifications for the nominated role. The applicant stated that it works in partnership with some of the largest and most successful phone retailers in Australia to provide clients with the best quality mobile phone accessory products at competitive prices. The applicant stated that it has recently expanded its services to customers through direct distribution using online sales channels. The nominee has a Bachelor of Commerce degree and has also worked in the mobile phone and accessories industry, having done an internship in China working for China Mobile. The applicant stated that the nominated role is genuine and consistent with the core business activities of the applicant. the applicant stated that a significant majority of the tasks are commensurate with the ANZSCO occupation determined for the role and the remuneration offered is commensurate with a skilled occupation in Australia and meets the market rate for the position. The applicant stated that the nominee has genuine intentions to perform the nominated role and has signed an employment agreement to that effect.
On 16 April 2015 the Department wrote to the applicant and requested more information about the genuineness of the position.
The Department received a submission dated 30 June 2015 from the applicant which stated that the business has been operating for 10 years. The applicant stated that the business started off with two directors and as the business grew, the company outsourced and hired contractors to do the office support work. The applicant had annual sales of $300,000 and $400,000 in the last two financial years. The applicant stated that it seeks to employ an in-house marketing coordinator to increase “its strengths in staff efficiency and skills inventory”. The applicant stated that in order to stand out from competitors, strong marketing strategies need to be made and implemented by a Marketing Specialist.
The applicant provided to the Department a position description for the marketing officer, a marketing promotion and expansion plan and an organisation chart.
The delegate refused the nomination on the basis that the applicant did not satisfy r.2.72(10)(f). The delegate stated that in the sponsorship application, lodged on 15 April 2015, the applicant declared an annual turnover of $272,668 for the most recent full financial year and indicated that the applicant is manned by two staff. The delegate was not satisfied that the position associated with the nominated occupation is genuine.
The applicant lodged the application for review with the Tribunal on 22 July 2015 and provided a copy of the delegate’s decision.
On 5 October 2016 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information in writing, including updated information to demonstrate that the applicant meets r.2.72. This included information to demonstrate that the position associated with the nominated occupation is genuine (r.2.72(10)(f)). It also included a current organisation chart showing the nominated position and its reporting lines, together with all the other positions in the organisation.
As stated previously, the applicant did not respond to the Tribunal’s letter.
The issue in the present case is whether the applicant meets the criteria for approval of the nomination. The Tribunal must approve the nomination if the applicable requirements in r.2.72 and, for nomination applications made from 23 November 2013, s.140GBA have been met: s.140GB(2).
The Tribunal will firstly consider whether the applicant meets r.2.72(10)(f).
Position must be genuine
Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.
The applicant has provided a number of documents to the Department including copies of a letter of offer, advertisements, position description, organisational chart and information as to the genuineness of the position.
The submission to the Department about the genuineness of the position is that the applicant needs a Marketing Specialist and that the position is genuine. The applicant stated that in order to stand out from competitors, strong marketing strategies need to be made and implemented by a Marketing Specialist.
The applicant lodged the application for review with the Tribunal on 22 July 2015 but has not provided any new submissions or current documentary evidence to the Tribunal since that date. Although the applicant provided to the Tribunal a copy of the delegate’s decision, the applicant has not provided any additional information to the Tribunal to support the claim that the applicant meets r.2.72.
The delegate refused to approve the nomination because the applicant did not satisfy r.2.72(10)(f). The applicant was aware that this was the reason for the refusal and provided a copy of the delegate’s decision to the Tribunal at the time of lodging the application for review. The Tribunal wrote to the applicant and requested that it provide updated information to show that the applicant meets r.2.72. The Tribunal informed the applicant that this includes but is not limited to the criterion which the delegate found was not satisfied: r.2.72(10)(f).
The most recent material, regarding the operations of the applicant to support the application for approval of the nomination, was provided to the Department in June 2015. This material is now almost 16 months old.
At the time of decision the Tribunal is not satisfied that there is sufficient recent evidence of the operations of the applicant to be satisfied that the position associated with the nominated occupation is genuine.
Although a letter of offer dated 3 March 2015 was provided to the Department and information about the financial circumstances of the applicant would have been provided in connection with the application for approval as a standard business sponsor, this material is now quite out of date. The applicant did not provide to the Tribunal any recent information about the need for the position or the genuineness of the position. No financial documents appear to have been provided to the Department as part of the nomination application and no financial documents were provided to the Tribunal. The delegate stated in the decision record that in the sponsorship application which was lodged on 15 April 2015, the applicant declared an annual turnover of $272,668 for the most recent full financial year and indicated that the applicant is manned by two staff. No recent financial evidence has been provided to the Tribunal. The applicant did not respond to the Tribunal’s letter of 5 October 2016 inviting the applicant to demonstrate that the position associated with the nominated occupation is genuine. The applicant has lost its entitlement to a hearing and the Tribunal was not able to take evidence from the applicant as to the genuineness of the position or why the applicant believes the position associated with the nominated occupation is genuine.
On the evidence, the Tribunal is not satisfied that the position associated with the nominated occupation is genuine. The nomination therefore does not satisfy the criteria prescribed at r.2.72(10)(f).
For the reasons given above the Tribunal finds that the applicant does not satisfy the requirements of r.2.72(10)(f), and therefore does not satisfy all the requirements for approval of the nomination.
The Tribunal can only approve the nomination if all of the applicable requirements in r.2.72 have been met: s.140GB(2). The Tribunal finds that the applicant does not meet r.2.72(10).
For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.
DECISION
The Tribunal affirms the decision not to approve the nomination.
D. Dimitriadis
MemberATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994
2.72 Criteria for approval of nomination — Subclass 457…
(1)This regulation applies to a person who is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister);
who, under paragraph 140GB (1) (b) of the Act, has nominated an occupation in relation to a holder of, or an applicant or a proposed applicant for, a [Subclass 457 visa].
(2)For subsection 140GB (2) of the Act, the criteria that must be satisfied for the Minister to approve a nomination by a person are set out in subregulations (3) to (12).
(3)The Minister is satisfied that the person has made the nomination in accordance with the process set out in regulation 2.73.
(4)The Minister is satisfied that the person is:
(a)a standard business sponsor; or
(b)a party to a work agreement (other than a Minister).
(5)The Minister is satisfied that the person has identified in the nomination the visa holder, or the applicant or proposed applicant for the visa, who will work in the nominated occupation.
(6)If the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5), the Minister is satisfied that the person:
(a)has listed on the nomination each other holder of a visa of that kind who was granted the visa on the basis of having the necessary relationship with the visa holder as mentioned in clause 457.321 of Schedule 2; and
(b)if the Minister requires the visa holder to demonstrate that he or she has the skills necessary to perform the occupation — the visa holder demonstrates that he or she has those skills in the manner specified by the Minister.
(7)For paragraph (6) (a), the Minister may disregard the fact that 1 or more persons required to be listed on the nomination are not listed, if the Minister is satisfied it is reasonable in the circumstances to do so.
(7A)In addition to subregulation (6):
(a)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the [Subclass 457 visa] was granted after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder; and
(b)if:
(i) the person identifies a holder of a [Subclass 457 visa] (the visa holder) for subregulation (5); and
(ii) the person has listed on the nomination a person described in paragraph (6) (a); and
(iii) the [Subclass 457 visa] was granted to the person described in paragraph (6) (a) after the Minister had waived the requirements of paragraph 4006A (1) (c) of Schedule 4 on the basis of a written undertaking made by the current sponsor of the visa holder (as set out in subclause 4006A (2) of that Schedule);
the Minister is satisfied that the person has provided, in writing, an undertaking that is equivalent to the undertaking made by the current sponsor of the visa holder.
(8)If the nomination was made before 1 July 2010 — the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6‑digit ASCO code for the nominated occupation — the 6-digit ASCO code;
(b)if there is no 6-digit ASCO code for the occupation, and the person is a standard business sponsor — the name of the occupation as it appears in the instrument in writing made for the purposes of paragraph (10) (a);
(c)if there is no 6-digit ASCO code for the occupation and the person is a party to a work agreement — the name of the occupation as it appears in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(8A)If the nomination is made on or after 1 July 2010 – the Minister is satisfied that the person has provided the following information as part of the nomination:
(a)if there is a 6-digit ANZSCO code for the nominated occupation - the name of the occupation and the corresponding 6-digit ANZSCO code;
(b)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a standard business sponsor;
the name of the occupation and the corresponding 6-digit code as they are specified in the instrument in writing made for paragraph (10)(aa);
(c)if:
(i) there is no 6-digit ANZSCO code for the nominated occupation; and
(ii) the person is a party to a work agreement;
the name of the occupation and the corresponding 6-digit code (if any) as they are specified in the work agreement;
(d)the location or locations at which the nominated occupation is to be carried out.
(9)The Minister is satisfied that either:
(a)there is no adverse information known to Immigration about the person or a person associated with the person; or
(b)it is reasonable to disregard any adverse information known to Immigration about the person or a person associated with the person.
(10)If the person is a standard business sponsor — the Minister is satisfied that:
(a)if the nomination was made before 1 July 2010 - the nominated occupation corresponds to an occupation specified by the Minister in an instrument in writing for this paragraph; and
(aa)if the nomination is made on or after 1 July 2010 – the nominated occupation and its corresponding 6-digit code correspond to an occupation and its corresponding 6-digit code specified by the Minister in an instrument in writing for this paragraph; and
(b)if required by the instrument mentioned in paragraph (a) or (aa) — the nomination of an occupation mentioned in the instrument is supported, in writing to the Minister, by an organisation specified by the Minister in an instrument in writing for this paragraph; and
(c)the terms and conditions of employment of the person identified in the nomination will be no less favourable than the terms and conditions that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident for performing equivalent work at the same location; and
(cc)the base rate of pay, under the terms and conditions of employment mentioned in paragraph (c), that:
(i) are provided; or
(ii) would be provided;
to an Australian citizen or an Australian permanent resident, will be greater than the temporary skilled migration income threshold specified by the Minister in an instrument in writing for this paragraph; and
(d)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ASCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (a); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-paragraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ASCO; or
(B)if there is no ASCO code for the nominated occupation — for the occupation in the instrument in writing made for the purpose of paragraph (a); and
(e)if the nomination is made on or after 1 July 2010 – the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)the nominated occupation listed in the ANZSCO; or
(B)the nominated occupation specified in an instrument in writing for paragraph (aa); and
(ii) if the person is lawfully operating a business outside Australia but does not lawfully operate a business in Australia:
(A)the nominated occupation is a position in the business of the standard business sponsor; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iii) if the person lawfully operates a business in Australia:
(A)the nominated occupation is a position with a business, or an associated entity, of the person; or
(B)the nominated occupation is an occupation specified by the Minister in an instrument in writing for this sub-subparagraph; and
(iv) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified:
(A)for the occupation in the ANZSCO; or
(B)if there is no ANZSCO code for the nominated occupation - for the occupation in the instrument in writing made for paragraph (aa).
(f)the position associated with the nominated occupation is genuine; and
(g)if the person has identified in the nomination the holder of a Subclass 457 (Temporary Work (Skilled)) visa in relation to whom the requirements in subclause 457.223(6) of Schedule 2 were met—one of the following applies:
(i) the requirements in subclause 457.223(6) of Schedule 2 continue to be met;
(ii) if:
(A)the holder would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the holder; and
(B)in order to obtain the licence, registration or membership, the holder would need to demonstrate that the holder has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified for the test by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the holder demonstrates that he or she has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership;
(iii) the holder is an exempt applicant within the meaning of subclause 457.223(4) of Schedule 2;
(iv) unless subparagraph (ii) applies—the holder:
(A)has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2; and
(B)achieved within the period specified by the Minister in a legislative instrument for this subparagraph, in a single attempt at the test, the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2; and
(h)either:
(i) the person will:
(A)engage the visa holder, the applicant for a visa or the proposed applicant for a Subclass 457(Temporary Work (Skilled)) visa only as an employee under a written contract of employment; and
(B)give a copy of that contract to the Minister; or
(ii) the nominated occupation is an occupation specified by the Minister in an instrument in writing for sub-subparagraph (e)(iii)(B).
(10AA)For paragraphs (10) (c) and (cc), if no Australian citizen or Australian permanent resident performs equivalent work in the person’s workplace at the same location, the person must determine, using the method specified by the Minister in an instrument in writing for this subregulation:
(a)the terms and conditions of employment; and
(b)the base rate of pay, under the terms and conditions of employment;
that would be provided to an Australian citizen or an Australian permanent resident to perform equivalent work in the person’s workplace at the same location.
(10AB)Paragraphs (10) (c) and (cc) do not apply if the annual earnings of the person identified in the nomination are equal to or greater than the amount specified by the Minister in an instrument in writing for this subregulation.
(10A)The Minister may disregard the criterion in paragraph (10) (cc) for the purpose of subregulation (2) if:
(a)the base rate of pay will not be greater than the temporary skilled migration income threshold specified for that paragraph; and
(b)the annual earnings are equal to or greater than the temporary skilled migration income threshold; and
(c)the Minister considers it reasonable to do so.
(11)If the person is a party to a work agreement (other than a Minister) — the Minister is satisfied that:
(a)the nominated occupation is specified in the work agreement as an occupation that the person may nominate; and
(b)if the nomination was made before 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ASCO code - the nominated occupation listed in the ASCO; or
(B)if the nomination is not made using an ASCO code -the nominated occupation specified in the work agreement; and
(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement; and
(c)if the nomination is made on or after 1 July 2010 - the person has certified as part of the nomination, in writing, that:
(i) the tasks of the position include a significant majority of the tasks of:
(A)if the nomination is made using an ANZSCO code - the nominated occupation listed in the ANZSCO; or
(B)if the nomination is not made using an ANZSCO code -the nominated occupation specified in the work agreement; and
(ii) the qualifications and experience of the visa holder, or the applicant or proposed applicant for the visa, identified in relation to the nominated occupation are commensurate with the qualifications and experience specified for the occupation in the work agreement.
(12)If the person is a party to a work agreement and the work agreement specifies requirements that must be met by the party to the work agreement — the Minister is satisfied that the requirements of the work agreement have been met.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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Jurisdiction
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